Appropriateness of applying zero-rate sales to certificates of purchase verified by a tax authority as defects

In the event of the supply of goods with a purchase certificate, the supply of goods made according to the purchase certificate shall be zero-rate, unless there are special circumstances, such as that there was a knowledge that there was any defect in the process of issuing the purchase certificate.

Article 11 of the Value-Added Tax Act

1. The Defendant’s imposition of value-added tax of KRW 33,013,860 on February 1, 2006 against the Plaintiff on February 1, 2006, and the imposition of value-added tax of KRW 11,809,570 on February 1, 200 shall be revoked in entirety.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account all the arguments in the statements in Gap evidence 1-1-24, Gap evidence 2-1-4, Gap evidence 4-1-2, Eul evidence 1-5, Eul evidence 7-1-3, Eul evidence 11-2, Eul evidence 13-1-2, Eul evidence 14-1 through 7, Eul evidence 15-1-3, Eul evidence 16-1-2, and Eul evidence 2-2.

가. 원고는 2004. 3. 25. 컴퓨터 주변기기 및 잡화 도 · 소매업과 무역업 등을 사업목적으로 설립된 법인인데, 원고는 2004. 4. 7.부터 2004. 7. 9.까지 해외에서 컴퓨터 부품인 중앙처리장치(CPU; central processing unit, 이하 '이 사건 물품'이라 한다)를 수입하여 주식회사 △△△△(설립등기일 2004. 2. 20., 이하 '△△△△'라 한다)에게 별지 매출내역표 기재와 같이 24회에 걸쳐 7,178,492,798원에 공급(이하 '이 사건 거래'라 한다)하였고, △△△△는 주식회사 □□□□□(설립등기일 2004. 2. 20.)에, 주식회사 □□□□□는 다시 2004. 4.경부터 2004. 5.경까지는 주식회사 XXXX종합상사(설립등기일 2004. 1. 20.)에, 2004. 6.경부터 2004. 7.경까지는 주식회사 ○○○○○(설립등기일 2004. 3. 20.)에 이 사건 물품을 공급하였다.

B. In doing the instant transaction, the Plaintiff did not collect the amount equivalent to value-added tax from △△△△△△△△△△ by applying the zero-rate tax rate under the Value-Added Tax Act on the grounds that 24th “the confirmation of purchase of raw materials for foreign exchange earnings (goods, etc.) issued by △△△△△△△△△△△, a foreign exchange president, was presented, and instead did not collect the amount equivalent to the value-added tax from △△△△△△△△△△△△△△△△△△△ for April 25, 2004 with respect to the input tax amount of the instant goods corresponding to the instant transaction from 137,035,314 won as of June 25, 2004, and from 193,103,320 won as of July 25, 2004, 1118,095,735 won as of August 25, 2004.”

C. On June 10, 2004, the Defendant: (a) refunded the Plaintiff the amount of KRW 267,482,020 for the foregoing April 10, 200, following a simple written review procedure; (b) but (c) even after the Plaintiff’s early refund of value-added tax was reported, the Defendant conducted an investigation of value-added tax for which the Plaintiff filed a continuous return

"라. 한편, 원고가 이 사건 거래를 하면서 △△△△로부터 제시받은 이 사건 구매확인서는 주식회사 □□□□□가 △△△△를 공급자로 하여 △△은행 △△△기업금융지점에서 발급받은 구매확인서들(이하 '이 사건 2차 구매확인서'라 한다)에 기초한 것이고 이 사건 2차 구매확인서는 주식회사 □□□□□를 각 공급자로 하여 주식회사 XXXX종합상사는 XXXX은행 XXX지점에서, 주식회사 ○○○○○은 ○○은행 ○○○지점에서 각 발급받은 구매확인서들(이하 '이 사건 1차 구매확인서'라 한다)에 기초한 것이다. 그런데 주식회사 XXXX종합상사와 주식회사 ○○○○○이 각각 이 사건 제1차 구매확인서를 발급받기 위하여 제출한 매매계약서에 수출거래업체로 기재한 일본 소재 □,□,□ CO. LTD'에 대하여 피고가 대한무역투자진흥공사(KOTRA)에 조사를 의뢰한 결과 □,□,□ CO. LTD는 실체를 확인할 수 없는 유령회사로 확인되었다.",마. 피고는 이에 이 사건 구매확인서가 비록 취소되지는 않았지만 이 사건 물품 거래에 관련된 업체 모두 2004년 초에 신설된 법인인데다가 원고가 △△△△에 공급하였던 이 사건 물품이 수출되지도 않았으므로, 이는 그 정황상 조직적으로 외국환은행의 구매확인서 발급절차를 악용하여 허위의 수출계약서 등 수출관련서류를 제출하고 쉽게 구매확인서를 교부받아 영세율로 위장신고하는 등 불법 내부거래를 한 것으로 보아 영세율을 적용할 수 없다는 이유로, 2004. 10. 18. 원고가 조기환급 신고한 2004년 5월분 및 6월분 합계 330,138,630원(=137,035,310원 + 193,103,320원, 각 10원 미만 버림), 7월분 118,095,730원(10원 미만 버림)에 대하여 환급을 거부하고, 기환급분인 2004년 4월분에 대하여도 영세율 매출을 부인하고 신고불성실 가산세를 적용하여 2004년 1기분 부가가치세 362,928,570원, 2004년 2기분 부가가치세 12,304,150원을 각 결정 · 고지한 다음 , 2006. 2. 1. 다시 원고에게 위 부과고지된 세액계산에 잘못이 있음을 이유로 2004년 1기 부가가치세 33,013,860원, 2004년 2기 부가가치세 11,809,570원을 각 추가로 경정 · 고지하였다(이하 '이 사건 처분'이라 한다)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while doing the instant transaction with the △△△△△△△, applied the zero-rate tax rate to believe that the instant purchase certificate presented by the △△△△△△△△△△ was lawfully issued by the head of ○○○○○, and the legal requirements for applying the zero-rate tax rate are the “Presentation of a purchase approval certificate issued by the head of the Foreign Exchange Bank within the taxable period whereto belongs the time of supply for the goods.” Since the Plaintiff accepted the Plaintiff’s report on early refund, including the zero-rate tax rate, for April 2004 against the Defendant, and thus, the Plaintiff continued to supply the instant goods upon receipt of the instant purchase confirmation without any doubt, or even if the Plaintiff did not perform the instant transaction while being aware of the defect of the instant purchase confirmation, the instant disposition otherwise reported is unlawful.

(b) Related statutes;

[Valued Tax]

Article 11 (Application of Zero Tax Rate)

(1) zero tax rates shall apply to the supply of goods or services falling under any of the following subparagraphs:

1. Exported goods;

(3) Matters necessary for the scope of goods and services under paragraph (1) shall be prescribed by Presidential Decree.

Enforcement Decree

Article 24 (Scope of Exports)

(2) The exported goods under Article 11 (1) 1 of the Act shall be deemed to include the goods falling under each of the following subparagraphs:

1. Goods which a businessman supplies by means of a local letter of credit or a written confirmation of purchase as prescribed by the Ordinance of the Ministry of Finance and Economy;

○ Enforcement Rule of the former Value-Added Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 422 on March 11, 2005)

Article 9-2 (Scope of Local Letters of Credit, etc.)

(2) The term "purchase confirmations under Article 24 (2) 1 of the Decree and Article 26 (1) 2-2 of the Decree means the confirmations which the head of a foreign exchange bank issues under Articles 38-2 and 1162 (14) of the Enforcement Decree of the Foreign Trade Act within 20 days after the end of the taxable period to which the time of supply for goods or services belongs, corresponding to a local letter of credit under paragraph (1) and on which the documents, such as the export letters of credit, their numbers, effective date, shipping date, etc. for

○ General Rules 11-24-9 of the Value-Added Tax Act

Tax rates of zero shall apply to goods supplied under a local letter of credit or a purchase approval as prescribed by the Foreign Trade Act, regardless of whether such goods are used for export after they are supplied.

C. Determination

The purchase confirmation of this case, which the Plaintiff received from △△△△ in the instant transaction, was issued on the basis of the instant secondary purchase confirmation, and the instant secondary purchase confirmation was issued on the basis of the instant first purchase confirmation. The instant first purchase confirmation was issued on the basis of a false sales contract, etc., and the fact that the instant goods were not actually exported is as seen earlier, however, the instant purchase confirmation issued by the head of a foreign exchange bank cannot be deemed null and void as a matter of course solely on the fact that the instant purchase confirmation was not actually exported. The issue of whether the instant goods supplied to △△△△△△△ was actually exported is not prescribed as a requirement for applying zero-rate tax (in particular, referring to general rules 11-24-9 of the Value-Added Tax Act), and it cannot affect the application of zero-rate tax rate to the Plaintiff.

In addition, barring special circumstances, such as the supplier’s knowledge that there was a defect in the process of issuing the purchase certificate at the time of the supply of the goods, the supply of the goods based on the purchase certificate may not be deemed to be excluded from zero-rate tax (see, e.g., Supreme Court Decisions 2003Du3642, Jun. 11, 2004; 2002Du9100, Aug. 30, 2004); subparagraph 5; subparagraph 6; subparagraph 1, 2, 7 through 10; subparagraph 11-1 through 3; subparagraph 12; subparagraph 12; subparagraph 16; subparagraph 17; subparagraph 18-1 through 9; and subparagraph 19, subparagraph 18-1 through 19, and subparagraph 19, subparagraph 19, etc. of this case, the Plaintiff did not have any other evidence to acknowledge any defect in the transaction at the time of the purchase in collusion with each of the instant △△△△△△△.

Therefore, the instant disposition, which did not apply zero tax rate to the instant transaction, is unlawful, unless there are circumstances to deem the instant transaction not subject to zero tax rate under the Value-Added Tax Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

List of Sales Details

No.

Date (204)

Quantity

Amount

1

4.7.

1,488 Preamble

279,017,294 won

2

4. 8.

2,150 pieces

182,123,910 won

3

4. 13.

1,500 pieces

248,538,092 won

4

4. 19.

1,300 pieces

209,463,015 won

5

4. 20.

1,000 1,000

200,633,855 won

6

4.26.

2,588 Preamble

519,294,452 won

7

4. 28.

2,000 pieces

373,860,420 won

8

4. 29.

1,576 Packs

267,430,342 won

9

4. 30.

2,000 pieces

402,057,700 won

10

5.3.

2,165 p.m.

414,193,537 won

11

5.7.

1,350 pieces

21,112,742 won

12

5. 13.

700 Gaz.

125,586,749 won

13

5. 14.

1,188 Preamble

191,627,830 won

14

5. 24.

2,000 pieces

429,896,896 won

15

6.7.

1,200 pieces

248,985,880 won

16

6.15.

600 80

19,100,942 won

17

6. 21.

50 Doz.

104,630,339 won

18

6.22.

500 pieces 50

124,220,310 won

19

6. 24.

800 80

170,346,945 won

20

6. 28.

2,950 pieces

593,543,648 won

21

6. 30.

2,800 pieces

567,803,942 won

22

7.7

2,838 pages

512,535,845 won

23

7.9.

1,740 pieces

328,750,360 won

24

7.9.

1,700 pieces

343,737,743 won

Consolidateds

7,178,492,788

[Seoul High Court 2007Nu14574 ( October 17, 2007)]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of KRW 3.0.860 on February 1, 2006 and KRW 11,809,570 on February 1, 2006 against the Plaintiff shall be revoked in entirety.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this decision are the same as the part of the reasons for the judgment of the court of first instance, and therefore, they are cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed on the grounds of its merit. It is so decided as per Disposition.